ACTA: International Harmonization at What Cost?

The next round of negotiations on ACTA start today in Guadalajara, Mexico. This week’s negotiations will apparently focus on civil enforcement, border measures, and enforcement procedures in the digital environment, and briefly, transparency.

One of the main goals of ACTA is creating new harmonized international IP enforcement standards above those in the 1994 TRIPs agreement. Thirty-seven countries with 37 different national laws are negotiating ACTA, so reaching agreement on new substantive IP enforcement standards will inevitably involve compromises. Some countries will be required to change their national law to bring them closer to other countries' approaches to IP regulation. Since two of the major powers negotiating ACTA are the US and the European Union (and its 27 Member States), there is much scope for different approaches and disagreements to arise. This is particularly true for Internet intermediary liability — where laws in the US and the various EU Member States take quite different approaches.

Which country prevails in this battle of legal wills will have tremendous consequences for citizens' access to knowledge and the future of the Internet as a powerful tool for communication, cross-border collaboration and a platform for innovation.

The EU has indicated that it is unwilling to agree to anything that requires changes to European Community law. EU negotiators would probably not be able to do so under their (still secret) negotiation mandate. On January 14, EU Commissioner-delegate for the Digital Agenda, Neelie Kroes stated that "The objective of ACTA negotiations is to provide the same safeguards as the EU did in the telecoms package... So we stick to our line and that's it."

For its part, the USTR has repeatedly said that ACTA will only "color within the lines of existing US law". Indeed, this is the justification for negotiating ACTA as a sole Executive Agreement, therefore bypassing the checks and balances of the usual Congressional oversight process applied to other recent free trade agreements, such as the US-South Korea FTA.

Given this, it is interesting to reflect on the leaked European Commission’s analysis of the US's Internet Chapter. Although draft text of the Internet chapter has not yet surfaced, the EU analysis discloses what the chapter covers: increased Internet intermediary liability, three strikes Internet disconnection obligations for ISPs, and civil and criminal technological protection measure laws modeled on the US DMCA.

(More after the Jump ..)

As the EU analysis notes, the goal of ACTA is to create an internationally harmonized intermediary liability regime based on US standards: the contributory copyright liability doctrine, and liability for inducing others to engage in copyright infringement as enunciated by the US Supreme Court in the 2005 MGM et al. v. Grokster et al decision;. While many ACTA negotiating countries have safe harbor or limitation of liability regimes for Internet intermediaries, national standards for Internet intermediary liability vary greatly across those countries. The inducement standard is unique to US law. As the EU analysis notes: "This concept does not exist in the current Acquis communautaire and in the law of several Member States." In other Commonwealth countries (Great Britain, Australia and New Zealand) intermediary liability exists only where intermediaries are found to authorize specific infringing activity.

Requiring other countries to harmonize with the US secondary liability standards via ACTA is dangerous for several reasons. First, it would change the existing relationships and balance of power between content providers, intermediaries and their users, with unpredictable consequences for citizens' access to knowledge and Innovation policy. Second, it overrides other countries’ national sovereignty and the public policies reflected in their national liability standards.

Third, it will reduce flexibility and harm the ongoing development of these concepts in both the US, and in other countries. The US secondary liability doctrines are not found in its copyright statutes. Courts have evolved them over time and in response to technological developments. US legislators have resisted introducing "inducement" liability concepts into US legislation on several occasions. Including a particular formulation of these concepts in ACTA risks entrenching a 2005 standard that will not serve the interests of US innovation policy. As Ville Okansen of EFFi notes this is also a danger for citizens in the EU.

In other countries, ACTA could effectively create an end-run around issues that are currently before national courts or the subject of national policy-making consultations. As Nic Suzor from Electronic Frontiers Australia states in his analysis of the impact of the leaked ACTA Internet chapter on Australian law, ACTA could overturn the Australian Federal Court’s consideration of secondary liability standards in the currentlt pending iiNet case:

The iiNet litigation is currently before the courts, and there is a chance that the Federal Court will find that iiNet had no obligation to pass on infringement notices or to terminate repeat infringers. It is conceivable that the ACTA will require higher standards of ISP liability, which could potentially see Australia introduce legislation to essentially overturn any verdict in the iiNet case.

As Jonathan Penney notes, New Zealand already has well-developed secondary liability law, and is in the midst of a public consultation about a Cabinet discussion paper looking at whether ISPs should be required to adopt a controversial three strikes policy under section 92A of the New Zealand law, something that was previously put on hold indefinitely because of the widespread public outcry. Now ACTA could force the government's hand.

Internet intermediary standards are different in different countries because they take account of differing national priorities and legal traditions. It is for this reason that intermediary liability standards are not readily susceptible to international harmonization. ACTA could completely override current national developments in other countries and require countries to adopt US standards that may suit US copyright owners, but would be ill-fitted to other countries’ national systems and priorities.

As David Fewer of CIPPIC notes in his guest post today, Canada has its own unique liability regime in "notice and notice", and challenges to this established system have failed to pass the Canadian parliamentary process not once but twice.

What's at stake here is the future of the Internet as we know it now. If national policy makers get this wrong, they could reduce incentives for Internet intermediaries to do the innovative sorts of things they’ve done in the past two decades, chill citizens' free expression and limit user generated content online, in the name of building a "more secure" environment for movie companies to sell us movies wrapped in technological protection measures.

All of this underlines the importance of transparency in the ACTA negotiations. As citizens around the world are proclaiming in unison today, balanced policy-making requires transparency and the participation of all affected stakeholders. This is particularly true because ACTA threatens to have such a significant impact on the global Internet and on citizens' rights in countries across the world.

ACTA negotiators have refused to make the text available for public comment, despite the fact that negotiations have been under way since 2008, and notwithstanding the USTR’s willingness to show the text to a cherry-picked handful of lobbyists. Citizens have had to rely on leaked texts to try to understand how ACTA will affect the Internet and impact their lives. This is not the way to create sound international IP enforcement rules, nor to ensure the legitimacy of this process.

Related Updates

In the week leading up the two-year anniversary of the SOPA blackout protests, EFF and others are talking about key principles that should guide copyright policy. Every day, we'll take on a different piece, exploring what’s at stake and and what we need to do to make sure the...

Copyright policies do not belong in trade agreements­—period. Negotiated without a trace of transparency or democratic oversight, these secret diplomatic processes are the worst venues to enact digital policy. Not only has the public been completely shut out, U.S. Congress members have extremely limited access to agreement texts even as...

This month, the former U.S. Assistant Secretary of Commerce Bruce Lehman, sometimes referred to as the architect of the Digital Millennium Copyright Act (“DMCA”), spoke at a Silicon Valley conference that brought copyright experts together to discuss the impact of that law 15 years later.
At the conference, Lehman...

In an interview with viEUws, the European Commissioner for Trade, Karel De Gucht, affirms that Europe wants to close the Canadian-European Trade Agreement (CETA) by the end of this year—which would have been today, since the European calendar year ends on October 31....

Despite protests from civil society organizations, but with applause from the entertainment lobby, Canada announced on October 9th that it has officially joined the Trans-Pacific Partnership Agreement negotiations. Canada joins the TPP not as an equal partner in the agreement but as a “second-tier” negotiator, which means it will...

“So long as we have enough people in this country willing to fight for their rights, we'll be called a democracy.” - ACLU Founder Roger Baldwin
In a recent blog post, Sandra Fulton of the American Civil Liberties Union's (ACLU) Washington Legislative Office, described the ...